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2014 DIGILAW 352 (JK)

Uttam Chand v. State

2014-08-21

DHIRAJ SINGH THAKUR

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1. In the present petition filed by the petitioner in 2011, selection and appointment of private respondent No.5, made by virtue of order dt 24.7.2004, as Education Volunteer in EGS Centre, Duenda, under SSA Scheme, Zone Bani, district Kathua, has been challenged. 2. The challenge rests on the ground that the petitioner being more meritorious than the respondent No. 5, was entitled for appointment as Education Volunteer. 3. Objections have been filed by the respondents. Respondents 1 to 4 have taken a stand that the present petition deserves to be dismissed on the ground of delay and laches. 4. Respondent No.5, in its objections has stated that the petitioner had neither applied for the post in question nor had participated in the process of selection initiated in the year 2004. 5. Heard learned counsel for the parties. 6. With a view to overcome the difficulty of delay of laches in filing the present petition, counsel for the petitioner urged that number of representations were filed by the petitioner agitating the selection and appointment of private respondent No.5, which were never properly responded by the official respondents. Copies of these representations dt. 8.3.2010 and 8.7.2010, have been placed on record. 7. The mere fact that the petitioner had filed representations, that too, as late as in the year 2010, would not amount to justifying the silence of the petitioner for as many as six years from the date, the cause of action had accrued to him. 8. How the courts have dealt with the issue of delay and laches in writ proceedings can briefly be noticed as under:- In Ramchandra Shankar Deodhar v. State of Maharashtra & ors, (1974) 1 SCC 317 , the Apex court held that there was no inviolable rule whenever there was delay, the court must necessarily refuse to entertain the petition under Article 226. The question was one of discretion to be exercised in the facts and circumstances of each case. Delay and laches was not a rule of law but a rule of practice based on sound and proper exercise of discretion. 9. The question was one of discretion to be exercised in the facts and circumstances of each case. Delay and laches was not a rule of law but a rule of practice based on sound and proper exercise of discretion. 9. Another principle that was laid down by the Apex Court and followed in R&M Trust v. Koramangala Residents Vigilance Group & Ors, (2005) 3 SCC 91 , was that delay would be an important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution, if the same had resulted in creation of third party interest. 10. The third principle as regards delay and laches can be noticed in the judgment of the Apex Court in the case of State of M.P v. Bhailal Bhai, AIR 1964 SC 1006 , which stated that the maximum period fixed by the legislature for grant of relief in a civil suit would ordinarily be reasonable standard for fixing the period to determine delay in seeking remedy under Article 226. The Apex court in the said case observed as under: "The provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. However; the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable." 11. However, it does not lay down, as a matter of principle, that in every case, where a petition is filed within the period, which is otherwise prescribed for filing a civil suit for a particular relief, the court must, as a matter of rule, accept the petition and exercise jurisdiction under Article 226. Reference in this regard can be made to the case of Ramana Dayaram Shetty v. International Airports Authority of India, AIR 1979 SC 1628 , where even five months delay was considered to be fatal. Reference in this regard can be made to the case of Ramana Dayaram Shetty v. International Airports Authority of India, AIR 1979 SC 1628 , where even five months delay was considered to be fatal. The Apex Court in the said judgment observed as follows: "Moreover, the writ petition was filed by the appellant more than five months after the acceptance of the tender of respondent 4 and during this period, Respondent 4 incurred considerable expenditure aggregating to about Rs 1,25,0000 in making arrangements for putting up the restaurant and the snack bars and in fact set up the snack bars and started running the same. It would now be most iniquitous to set aside the contracts of Respondent 4 at the instance of the appellant. The position would have been different if the appellant had filed the writ petition immediately after the acceptance of the tender of Respondent 4 but the appellant allowed a period of over five months to elapse during which Respondent 4 altered their position. We are, therefore, of the view that this is not a fit case in which we should interfere and grant relief to the appellant in the exercise of our discretion under Article 226 of the Constitution." 12. Similar was the view taken by the Apex Court in Ashok Kumar Mishra v. Collector, Raipur, AIR 1980 SC 112 . 13. In the present case, the cause of action, if any, had accrued to the petitioner in the year 2004, when the respondent No.5, was appointed as Education Volunteer. He for the first time, approached the official respondents by filing representation in March, 2010, i.e. after six years of selection and appointment of the aforementioned private respondent and there is no explanation in that regard. 14. The official respondents have stated that the services of private respondent No.5, has since been converted as ReT teacher from Education Volunteer pursuant to the orders dt. 27.11.2008, and is presently working as such in Primary School, Duenda. 15. Under the said circumstances, it would be highly inequitable to allow the petitioner to challenge the selection and appointment of private respondent No.5, at this belated stage when he had chosen to remain silent for all these years. 16. Following the ratio of the judgments aforementioned, the present petition is held to be barred by delay and laches and is, accordingly, dismissed.